Opinion
No. 53165-4-I
Filed: December 27, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-05679-7. Judgment or order under review. Date filed: 09/10/2003. Judge signing: Hon. Paris K Kallas.
Counsel for Appellant(s), Lisa Nicole Ellis, Ellis Li McKinstry PLLC, 601 Union St Ste 4900, Seattle, WA 98101-3906.
Justin Lewis (Appearing Pro Se), Doc# 807814, Olympic Corrections Center, 11235 Hoh Mainline Rd., Forks, WA 98331.
Eric J. Nielsen, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), David W Gross, King Co Pros Office, W554, 516 3rd Ave, Seattle, WA 98104-2390.
`A photograph is sufficiently authenticated when a witness testifies that it accurately portrays the subject illustrated.' Because the record contains authentication by those with firsthand knowledge of the damage to a police van and injury to an officer's hand portrayed in the photographs, it was not an abuse of discretion to admit those photographs.
Toftoy v. Ocean Shores Prop., Inc., 71 Wn.2d 833, 836, 431 P.2d 212 (1967).
Officers Maes, Sergeant Dixon, and Captain Sanford approached Lewis during a Mardi Gras celebration on the streets of Seattle. When Officer Maes told Lewis that he had an outstanding felony arrest warrant, Lewis began to back away and a struggle followed. Lewis pushed Maes away knocking him to the ground. Lewis lunged toward Dixon, knocking him backward into a police van. Maes got up and noticed that his hand was bleeding profusely with five cuts to his right hand, a laceration to his forearm and a sprained middle finger. The side of the van was damaged so extensively that the van door could not be opened.
At the trial on two counts of third degree assault, Officer Maes testified to his injuries, identified an exhibit as `photographs of my hand from that night,' and indicated that the photographs accurately reflect the injuries he suffered. Captain Sanford, who participated in the arrest of Lewis, testified to the extensive damage to the police van. He identified two exhibits as `pictures of the command van that we were riding in and they depict, although I don't think they depict it very well, the damage to the van.' Over defense objection, the court admitted the photos. The jury found Lewis guilty of third degree assault of Maes, but acquitted as to count alleging an assault of Dixon.
The sole issue raised on appeal is the adequacy of the foundation for the photographs of the police van and of Maes' hand. The admission of photographs is within the sound discretion of the trial court. Contrary to the argument by Lewis, testimony of the time and place where the photographs of Maes' hand were taken are not required; a foundation that the photographs accurately portray the subject that they depict is sufficient. Officer Maes provided a sufficient foundation that the photographs of his hand accurately reflect the injuries he suffered in the confrontation with Lewis. Captain Sanford had first hand knowledge of the extensive damage to the van and testified that the photographs depict the damage to the van. It was within the discretion of the trial court to determine whether Captain Sanford's comment that the photos did not depict the extent of damage `very well' went to the weight of the photographs. There was no abuse of discretion.
State v. Tollett, 12 Wn. App. 134, 136, 528 P.2d 497 (1974).
Toftoy, 71 Wn.2d at 836; Tollett, 12 Wn. App. at 136; 5D Karl B. Tegland, Washington Practice: Evidence, Title IX-ER 901 Author's Comments (15)(b) at 461 (2005 ed.) (`Some earlier Washington cases seemed to require testimony about when, where, and under what circumstances the photograph was taken, but the requirement has been abandoned since the late 1960's.').
We affirm.
COLEMAN, J., GROSSE, J. and BAKER, J.